Cummings v. Cain

• Decision Date: 10 February 2017
• Docket Number: CIVIL ACTION NO. 5:13CV02935
• Parties: CLYDELL CUMMINGS, v. N. BURL CAIN
• Court: U.S. District Court — Western District of Louisiana

CLYDELL CUMMINGS, v. N. BURL CAIN

CIVIL ACTION NO. 5:13CV02935

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA SHREVEPORT DIVISION

February 10, 2017

JUDGE HICKS

MAGISTRATE JUDGE PEREZ-MONTES

REPORT AND RECOMMENDATION

I. Background

Before the Court is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by pro se petitioner Clydell Cummings ("Cummings"). Cummings contests his 2009 conviction by a jury in the Louisiana First Judicial District Court, in Caddo Parish, on one count of possession of cocaine with intent to distribute, and the finding that he is a fourth felony offender. See State v. Cummings, 46,038 (La. App. 2d Cir. 1/26/11) 57 So.3d 499, writ den., 2011-0341 (La. 6/17/11), 63 So.3d 1037. Cummings was sentenced to life imprisonment. Cummings is presently incarcerated in the Louisiana State Penitentiary in Angola, Louisiana.

Cummings raises the following issues:

1. Whether the state courts used an unreasonable application of clearly established federal law when reviewing Cummings's insufficiency of evidence claim?

2. Whether the sentence imposed violates the Eighth Amendment of the United States Constitution, as constitutionally excessive under La. R.S. 15:529.1?

3. Whether Cummings's trial counsel was ineffective and the conviction was obtained in violation of the Sixth Amendment?

4. Whether Cummings's conviction was obtained in violation of the Fifth and Fourteenth Amendments' rights to due process and a fair trial?

The Respondent answered the petition (Doc. 13). Cummings's habeas petition is now before the Court for disposition.

II. Underlying Facts.

The facts of Cummings's case as set forth by the Louisiana Second Circuit Court of Appeal, as Cummings, 57 So.3d at 502, are as follows:

On October 7, 2008, law enforcement officials in Shreveport received information from a confidential informant that cocaine was being sold from Room 25 of the Levingston Motel. A search warrant was obtained for that room. At approximately 11:00 p.m., members of the street level interdiction unit, a team composed of Caddo Sheriff's deputies and Shreveport Police officers, arrived on the scene to execute the warrant. Three officers used a battering ram to knock down the door to the room. One officer noticed a man jumping out the back window of the room. Another officer ran behind the building and found the defendant hiding under it.

In the motel room, officers found a rock of crack cocaine on a plate with a razor blade. In a small purse, officers found 142 rocks of crack cocaine, individually packaged. The total weight of the cocaine found in the room was 25 grams. In a search incident to arrest, officers found more than $1,000 in small bills in the defendant's front pockets.

The defendant was charged by bill of information with possession of a Schedule II controlled dangerous substance, cocaine, with intent to distribute. The defendant was tried by jury and convicted as charged in a unanimous jury verdict. Motions for a new trial and for a post verdict judgment of acquittal were denied by the trial court on December 18, 2009.

The defendant was charged with being a fourth felony offender. On February 3, 2010, a hearing was held; the defendant was adjudicated a fourth felony offender and sentenced to life imprisonment.

III. Rule 8(a)

The Court is able to resolve this habeas corpus petition without the necessity of an evidentiary hearing because there is no genuine issue of material fact relevant to Cummings's claims, and the state court records provide the required and adequatefactual basis. See Moya v. Estelle, 696 F.2d 329, 332-33 (5th Cir. 1983); Easter v. Estelle, 609 F.2d 756, 761 (5th Cir. 1980); Habeas Corpus Rule 8(a).

IV. Standard of Review

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall be considered only on the ground that he is in custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a).

Under 28 U.S.C. § 2254, habeas relief is not available to a state prisoner with respect to a claim that was adjudicated on the merits in the State court proceedings unless the adjudication of the claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Therefore, pure questions of law and mixed questions of law and fact are reviewed under § 2254 (d)(1), and questions of fact are reviewed under § 2254(d)(2). See Martin v. Cain, 246 F.3d 471, 475-76 (5th Cir. 2001), cert. den., 534 U.S. 885 (2001).

A state court decision is contrary to a clearly established Supreme Court precedent if the state court applies a rule that contradicts the governing law set forth in Supreme Court cases, or confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from Supreme Court precedent. A state court decision falls withinthe unreasonable application clause when it unreasonably applies Supreme Court precedent to the facts. See Martin, 246 F.3d at 476, and cases cited therein.

V. Law and Analysis

A. There is sufficient evidence to support Cummings's conviction for possession with intent to distribute cocaine.

First, Cummings contends the state courts failed to apply the standard set forth in Jackson v. Virginia, 443 U.S. 307 (1979), when reviewing Cummings's insufficiency of evidence claim, and thus erred in finding there was sufficient evidence of constructive possession to support his conviction. Cummings argues that, to support a conviction for possession of a controlled dangerous substance, the State must prove the defendant was in possession of the illegal drug and knowingly possessed the drug.

1. The law of Jackson v. Virginia.

A reviewing court confronted with a claim of insufficient evidence must, after viewing all the evidence in the light most favorable to the conviction (prosecution), determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Cupit v. Whitley, 28 F.2d 532, 542 (5th Cir. 1994), cert. Den., 513 U.S. 1163 (1995) (citing Jackson v. Virginia, 443 U.S. 307 (1979)).

Habeas relief on a claim of insufficient evidence is appropriate only if it is found that, upon the record evidence adduced at trial, no rational trier of fact could have found proof of guilt beyond a reasonable doubt. See West v. Johnson, 92 F.3d 1385 (5th Cir. 1996), cert. den., 520 U.S. 1242 (1997) (citing Jackson, 443 U.S. at 322-26).To apply this standard, the court looks to elements of the offense as defined by state substantive law. See Donahue v. Cain, 231 F.3d 1000, 1004 (5th Cir. 2001).

A jury's determination of witness credibility, the inferences made on the evidence, and the jury's reasonable construction of the evidence is entitled to substantial deference by a reviewing court. See Marshall v. Lonberger, 459 U.S. 422, 433-35 (1983). In addition, where there has been a thoughtful review of the sufficiency of the evidence by a state appellate court, that court's findings are entitled to great weight. See Jackson, 443 U.S. at 322 n.15.

Possession of a controlled substance with intent to distribute is proven by showing, beyond a reasonable doubt, that defendant possessed the drug with the intent to distribute it. The state is not required to prove actual possession, but needs only to show the defendant exercised dominion or control over the illegal substance. See State v. Jordan, 489 So.2d 994, 996 (La. App. 1st Cir. 1986) (citing State v. Walker, 369 So.2d 1345 (La. 1979)). In order to prove the element of intent to distribute, the state must prove defendant's subjective specific intent to possess in order to distribute. See Jordan, 489 So.2d at 996 (citing State v. Elzie, 343 So.2d 712 (La. 1977)).

The intent to distribute may be inferred from the surrounding circumstances. The trier of fact may look to how the substance was packaged, the quantity of the substance seized, and the presence of scales or other paraphernalia for drug use or packaging. See Jordan, 489 So.2d at 997 (citing State v. Trahan, 425 So.2d 1222 (La. 1983)). Testimony of the street value and dosage units of the narcotic is also relevant.See Jordan, 489 So.2d at 997 (citing State v. Tornabene, 337 So.2d 214 (La. 1976)). The presence of large sums of cash has also been considered as circumstantial evidence of intent. See Jordan, 489 So.2d at 997.

2. The trial testimony.

At trial, Agent Witham testified that Cummings was arrested because 34.3 grams of individually packaged crack cocaine were found in his motel room (in a search pursuant to a search warrant), and because there was an outstanding warrant for his arrest (Doc. 13-4, pp. 53-55/172). There were about 8.3 grams of crack cocaine and two razor blades on a plate in Cummings's room, which indicated someone had been distributing crack from that room (Doc. 13-4, pp. 48-49, 51, 54/172). There was also a large black change purse/cigarette pouch on the floor beside the bed that had 142 individually packaged "dime bags" of crack cocaine (Doc. 13-4, pp. 51, 71/172). The dime bags weighed, altogether, 26 grams (Doc. 13-4, p. 51/172). The officers found a total of 34.3 grams of crack cocaine in the motel room (Doc. 13-1, p. 45/172). Deputy Witham testified that Cummings told him he had not realized he had that much crack cocaine in his room (Doc. 13-4, p. 8/172). Deputy Witham also testified that Cummings said he would give him information if he visited him (Doc. 13-1, p. 14/172). Deputy Witham testified that no one else was in Cummings's room (Doc. 13-4, p. 56/172).

Agent Parker testified that, when they entered Cummings' room to execute the search warrant,...